Opinion Column

Justice Anthony Kennedy's contempt

So after the federalism throat clearing, Kennedy simply declares the supporters of DOMA hateful people. The members of Congress who passed the act and the president who signed it are morally no better than members of the Westboro Baptist Church who picket military funerals with their heinous signs declaring that “God hates fags.” Bill Clinton, apparently, despised gays. So did 342 members of the House and 85 senators, including 120 and 32 Democrats, respectively.

Bill Clinton now wishes he hadn’t signed it. Like so many others, he changed his mind on the issue. Fine. There is nothing to stop Congress from overturning what Bill Clinton considers his mistakes. It did it with “don’t ask, don’t tell.” It could have done the same thing — eventually — with DOMA.

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But Justice Kennedy and his colleagues don’t want to wait for the long democratic process of deliberation to play itself out, not when they have such immense power to do whatever the hell they want.

Properly understood, the court’s role here is minimal and the decision could have been rendered in a sentence. To wit, as Scalia wrote, “It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy or the consumption of alcohol.”

The court stipulated that its decision prohibits a traditional definition of marriage only at the federal level and that the states are free to debate and decide the issue themselves. This is a false assurance, though. Once the high court has declared that the traditional definition is a product of irrational animus, over time it won’t be allowed to stand anywhere.